Boston College Law Review Volume 20 Article 3 Issue 5 Number 5 7-1-1979 Double Jeopardy: When Is an Acquittal an Acquittal? Jason Wiley Kent Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Criminal Procedure Commons Recommended Citation Jason W. Kent, Double Jeopardy: When Is an Acquittal an Acquittal?, 20 B.C.L. Rev. 925 (1979), http://lawdigitalcommons.bc.edu/bclr/ vol20/iss5/3 This Notes is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. NOTES DOUBLE JEOPARDY: WHEN IS AN ACQUITTAL AN ACQUITTAL? A fundamental principle of double jeopardy jurisprudence cautions pros- ecutors that an acquittal in a criminal case, once received, will bar forever a second prosecution for the same offense.' The notion that underlies this fifth amendinent, 2 post-acquittal protection is rudimentary to the American criminal justice system. It is that the power to prosecute, if improperly exer- cised, represents so significant a threat, to individual rights that the state must be limited to one bite at the prosecutorial apple lest the individual, innocent in the eyes of the law, be exposed to the possibility of oppressive repeated prosecutions for the same offense. 3 The relative simplicity of the concept, however, belies the complexity as- sociated with its application in clay-to-day criminal prosecutions. In reality, defendants often are discharged from prosecution following judgments that resemble in effect but not in timing or legal significance the post-trial verdict of innocence one commonly associates with the term "acquittal."' As a result, the availability of a post-acquittal double jeopardy defense has come to turn on subtle and often confusing distinctions in the manner in which the initial ' See United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). There are several different facets to the double jeopardy clause. At one time the Supreme Court observed that it offers three related protections: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1968).. In fact, the number of different protections is greater than three. The clause also protects under certain circumstances against. reprosecution following mistrial, see generally Note, Mistrials and Double Jeopardy, 15 Am. Glum. L. REv. 169 (1977); it offers a certain amount of protection against prosecution for multiple offenses arising out of the same transaction, see generally Note, Multiple Prosecutions Arising From the Same Transaction, 15 Am. GRIM. L. REV. 259 (1978); and it lends constitutional status to the doctrine of collateral estoppel in criminal cases, see generally Note, Expanding Double Jeopardy: Collateral Estoppel and the Evidentiary Use of Prior Crimes of Which the Defendant Has Been Acquitted, 2 FLA. ST. U.L. REV. 511 (1 974). 2 The fifth amendment provides in part: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ...." U.S. CONST. amend. V. See United States v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977), where the Court stated: "lilt the heart of this policy is the concern that permitting the sovereign freely to subject the citizen to a second trial for the same offense would arm Government with a potential instrument of oppression." 4 For example, a defendant might be discharged by the trial court in re- sponse to a mid-trial defense motion alleging the statute in question to be unconstitu- tional. The immediate effect of the judgment would be to release the defendant from prosecution in the same practical manner as a jury verdict of innocence. The timing of the judgment, however, is obviously different from that of a jury verdict, and the legal significance of a determination that a statute cannot constitutionally be applied is very different from that of a factual finding that the acts or conduct alleged have not oc- curred. 925 926 ROSTON COLLEGE LAW REVIEW [Vol. 20:925 prosecution was terminated. Consider the following: A trial judge may dis- charge a criminal defendant by way of a pre-, mid-, or post-trial judgment, irrespective of the decision or the potential decision of the trier of fact. Such judgment might be characterized either as an acquittal or a dismissal.' In addition, and perhaps most significantly, such judgment might be granted on one or several of many substantive grounds. Keeping in mind that protection against double jeopardy represents an absolute bar to reprosecution of an individual who may have committed a serious offense, should these pro- cedural and substantive variations in criminal discharges influence the avail- ability of a post-discharge double jeopardy defense? And if there should be an influence, what should that influence be? Answers to these questions may be found through a growing list of United States Supreme Court cases. In particular, two cases decided on the same day during the Supreme Court's 1977-78 term add significantly to the law of post-acquittal double jeopardy. In United States v. Scott,' the Supreme Court discarded precedent and confined the availability of a double jeopardy defense following dismissal to cases where the dismissal represents a finding of factual innocence, and not merely a favorable resolution of a legal defense to prosecution.' In Burks v. United States," the Court. again overruled prece- dent, this time to extend protection against reprosecution to defendants whose convictions arc overturned on appeal on grounds of evidentiary insuf- ficiency.`'' Together. these decisions offer a sorely needed definition of the term "acquittal," a term often misunderstood, and, heretofore, effectively un- defined for double jeopardy purposes. The definition should reduce the con- fusion in this area of criminal law. This note will examine and explain the availability of a federal,'" post- acquittal double jeopardy defense as modified by these decisions. The note As with most questions in double jeopardy, even the distinction between acquittals and dismissals is hazy. Trial court acquittals are factual determinations that the prosecution's evidence is insufficient. as a matter of law to convict. FED. R. CRIM. P. 29(a), quoted in part at note 35 infra. Dismissals, by contrast, may he granted for numerous legal and factual reasons, ranging from unconstitutionality of the under- lying statute, to g(wernmenl misbehavior. to the trial court's approval of an affirma- tive defense that implies actual innocence. Compare, e.g., United States v. Zisblatt, 172 F.2d 740, 741 (2d Cir. 1949) (dismissal based on statute of limitations defense), will/ United States v. Hill. 473 F.2d 759, 760 (9th Cir. 1972) (dismissal on grounds litera- ture not obscene as a matter of law). There is no realistic way to explain the term "dismissal" via a single definition, Rather, dismissals must be viewed as a tool used by trial courts to supervise and administer criminal prosecutions: they may address sub- stantive or procedural issues or both, Unfortunately there is no centralized treatment of dismissals in the Federal Rules of Criminal Procedure, although certain dismissals ' for specific reasons are discussed or generally alluded to. See FED. R. Clam. P. 48, 12. 6(b)(2). " 437 U.S. 82 (1978). M. at 97-99, 101. This distinction between innocence and legal immunity is developed in text and notes at notes 71-84 infra. 437 U.S. 1 (1978). Id. at 16 - 18. '° This note examines double jeopardy protection as applied against the fed- eral government rather than as against the states. Nevertheless, recent cases incorporate fifth amendment double jeopardy protection word for word into fourteenth amend- July 19791 DOUBLE JEOPARDY 927 begins by outlining the circumstances under which a criminal defendant who has been favorably discharged may use the discharge to bar government ap- peals" and possible reprosecution. Next, the note will review the recent deci- sions individually in an effort to highlight the most significant facets of each and to make note of their support of or departure from precedent. Finally, the note will attempt to develop the theme common to these latest decisions, to compare this theme with the theoretical pronouncements of earlier deci- sions, and to assess the apparent shift in judicial orientation. Because the re- cent decisions represent a rational approach to the realities of criminal pros- ecutions, this note offers a favorable assessment of these cases." 1. FINAL JUDGMENTS THAT INVOKE DOUBLE JEOPARDY There are three sources of determinations that lead to favorable final discharges of criminal defendants. These sources are: (1) the trier of fact, whether judge or jury, which makes solely factual determinations; (2) the trial court, represented by the trial judge sitting other than as the trier of fact, which makes legal determinations that may or may not involve serious factual inquiry; 13 and (3) an appellate court which makes determinations parallel to those of the trial court. The application of double jeopardy protection to final judgments differs depending upon the source of such judgments. These sources, therefore, are treated separately in the following discussion. A. Acquittal by Decision of the Trier of Fact The foremost example of post-acquittal double jeopardy protection oc- curs where a defendant is acquitted by decision of the trier of fact, and it is in this context that all double jeopardy protection has its beginnings. in such cases, the acquittal may never be reviewed "on error or otherwise." 14 The ment due process, thereby making the rules stated herein applicable as against the states.